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Highly Informed: If I live in a school zone, can I smoke pot in my house?

  • Author: Scott Woodham
  • Updated: September 28, 2016
  • Published December 18, 2015

Nathan wonders something that a few other people have asked about too: "My understanding is that it is currently illegal to consume or possess any amount of marijuana within 500 feet of a school zone, regardless if you're on private property or not. I have a two-part question. 1. Will the law allow people to consume marijuana in their private residence, regardless of where it is in relation to a school zone? 2. Will businesses be allowed to sell marijuana within 500 feet of a school zone?"

These questions are based on a little bit of a misconception, but let's get the simple part out of the way first. State regulations recently adopted won't license a marijuana business located within 500 feet of "school grounds, a recreation or youth center, a building in which religious services are regularly conducted, or a correctional facility." But those regulations are for the legal industry, separate from the criminal statutes on the books punishing possession near school grounds.

Alaska criminal law establishes 500-foot drug-free zones around school grounds and youth centers and on school buses. When it comes to legal amounts of personal-use cannabis inside a private home, you're in the clear. So if you're 21 or older, feel free to puff in peace inside your own home, no matter how close you live to a school. You'd be in the clear even if you built a scale model of a high school bathroom in your garage to host sessions with all your adult friends.

Read more Highly Informed: Seeking answers to Alaska's cannabis questions

To be certain, though, state criminal laws don't talk about consumption, just possession. Consumption has not historically been the illegal thing when it comes to controlled substances, for reasons related to evidence and proof. But regardless of that, when it comes to possessing cannabis, Alaskans have some history.

Seneca Theno, Anchorage city prosecutor, pointed out in a phone interview that even before the initiative to legalize, tax and regulate cannabis here, state drug-free buffer zone statutes already contained an affirmative defense for charges relating to in-home cannabis possession in drug free zones that is contained "entirely within a private residence."

Legal textbooks agree that a defendant giving an affirmative defense doesn't mean that the alleged action will be considered legal and charges automatically thrown out. It just means that the defendant can admit to the alleged activity and try to prove facts that provide an excuse or justification for why they did what they did, in hopes of removing or reducing their liability. One common example is the so-called "insanity defense."

In the case of marijuana, Alaskans have had strong justifications available to them for certain amounts of strictly personal cannabis in the home, in the form of legal precedent based on the constitutional guarantee of privacy.

If you're keeping score at home, the affirmative defense pertaining to Alaska's drug-free school zones laws resides in Alaska statutes section 11.71.040, and is titled "Misconduct Involving a Controlled Substance in the Fourth Degree," a Class C felony also known as MICS4. That criminal provision wasn't repealed with the passage of Ballot Measure 2 and is still on the books. Here's the text.

(b) It is an affirmative defense to a prosecution under (a)(4)(A) of this section that the prohibited conduct took place entirely within a private residence located within 500 feet of the school grounds or recreation or youth center. Nothing in this subsection precludes a prosecution under any other provision of this section or any other section of this chapter.

And "(a)(4)(A)" of that section says that a person is guilty of MICS4 if they possess certain controlled substances, including marijuana, "with reckless disregard that the possession occurs (i) on or within 500 feet of school grounds; or (ii) at or within 500 feet of a recreation or youth center; or (B) on a school bus."

So, regardless of the initiative to legalize, tax and regulate cannabis, Alaskans have had an affirmative defense to the state drug-free school zone law and a body of legal precedent to refer to when making their case. But now voters have enshrined the spirit of that legal precedent in statute, explicitly allowing adult Alaskans to grow up to 6 plants in their own homes, up to three of them flowering at a time, and possess all of the produce their plants grow.

Those facts may not render Alaska's drug-free school zone law completely moot when it comes to adult personal-use possession and cultivation inside one's own home, but it's pretty darn close in my opinion. The criminal law regarding marijuana and school zones is still on the books, but also in my opinion, it's very unlikely that anyone will be charged under it for smoking or possessing at home, or even maintaining a legally compliant home garden.

Although it takes us into the hypothetical weeds a bit, I also think it would be difficult for anyone to be charged for legally compliant personal use possession in their backyard if their backyard were within that 500-foot zone. First of all, how is anyone going to know someone's possessing cannabis if no one can see it from public property? But as long as those criminal laws stay on the books, law enforcement officers will be confronted with a choice. And how they'll navigate that choice remains an open question based on the facts they encounter.

Alaska State Troopers spokeswoman Megan Peters said in an email, referring to the MICS4 statute identified in this column above, "Troopers will use this statute as our guide when investigating these incidents. How they turn out in court is not something we can predict." She said that the statutes are still "in effect and subject to interpretation and enforcement of Alaska law enforcement agencies and the Department of Law District Attorney's Office."

Alaska Department of Law Criminal Division Director John Skidmore said he hasn't had time to do analysis and therefore cannot comment on this legal question. If that changes, I'll update this space.

Alcoholic Beverage Control Board Director Cynthia Franklin confirmed that the regulations recently adopted by the Marijuana Control Board only cover licensed commercial marijuana operations, not personal use in the home.

Franklin, a former prosecutor herself, said in a phone interview that she thinks it would also be difficult for someone to argue that personal use would be prohibited in the home in a place where commercial sales are also prohibited. For example, she said, the statutes passed as Ballot Measure 2 allow communities to opt-out of commercial cannabis activity, but if a community opts out, it doesn't cancel the statutes that allow some personal cannabis possession and growth in the home.

Now, federal law is another kettle of fish. Federal drug-free zones extend to 1,000 feet, and are pointed more toward trafficking and quantities far larger than what would be involved in state-compliant personal-use grows.

Have a question about marijuana news or culture in Alaska? Send it to cannabis-north@alaskadispatch.com with "Highly Informed" in the subject line.

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